Copyright and Fair Use

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A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

Tom Rubin is currently Lecturer in Law at Stanford Law School, where he is teaching a seminar entitled Copyright and Content in the Digital Age. Previously, he was Chief Intellectual Property Strategy Counsel at Microsoft, where he led the copyright, trademark and trade secret group. During six years in that role and 15 years at the company, Rubin spearheaded complex product development, licensing, marketing, enforcement and global policy strategies across Microsoft’s business divisions, including Windows, Office, Azure, Xbox and Bing.

I have now been a non-resident fellow at CIS since 2004. My work currently looks at copyright duration in a comparative and international context, and with the help of my brilliant students at Tulane, we are building a software tool --the Durationator -- to make usable the past once more. We hope to have it complete and available for use sometime in the Fall 2008.

The European Commission is making major steps forward in its new Digital Single Market strategy. One important part, the Platform Liability consultation, pointedly asked whether Internet intermediaries should “do more” to weed out illegal or harmful content on their platforms – in other words, to proactively police the information posted by users.

The Facebook Trending Topics controversy has been analyzed from many angles, but there's been virtually no attention paid to the single most troubling aspect of the story: a Senate inquiry into Facebook's editorial decision-making process. My Slate column on the issue is here.

The Recording Industry Association of America (RIAA) is at it again. In a joint open letter to Congress, it is leading a push by the music industry to rewrite Internet copyright law in ways similar to its advocacy of the infamous Stop Online Piracy Act (SOPA) of 2012. SOPA failed miserably in Congress. It was abandoned after more than 15 million Americans objected to the bill’s attempt to restrict Internet freedom as 115,000 websites staged a massive blackout online.

In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy.

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Sarah Morris is a well-known multimedia artist and filmmaker. In 2007, she debuted her "Origami" series, 24 paintings in which she reworked, redesigned, and reshaped origami crease patterns on canvas. Several origami artists sued Morris for copyright infringement, arguing Morris had unduly appropriated their allegedly copyrightable origami crease patterns in developing the "Origami" series. The Fair Use Project teamed up with attorneys Bob Clarida and Donn Zaretsky to defend Morris. We briefed the fair use issues on summary judgment.

We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.

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"Daniel Nazer, a lawyer with the Electronic Frontier Foundation, told Fortune that applications to patent the blockchain — which is a form of software — face a high hurdle due to a Supreme Court case called Alice. That decision ruled that most, or perhaps all, software patents are abstract ideas that are ineligible for patent protection.

"US Patent No. 8,856,221 is called the "System and method for storing broadcast content in a cloud-based computing environment." In short, the invention claims ownership of a method to deliver media content from remote servers—the cloud, as we now know it—to computers.

"“This is a tremendously important improvement for consumer protection,” says Andrea Matwyshyn, a professor of law and computer science at Northeastern University. “The Copyright Office has demonstrated that it understands our changed technological reality, that in every aspect of consumers’ lives, we rely on code,” says Matwyshyn, who argued for the exemptions last year.

Thursday, April 16

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The song “Happy Birthday” has a long, litigious history dating back to the 1930s. Every year, people spent millions in royalties to use the song, until a class action lawsuit was brought challenging whether the owner, Warner/Chappell Music, actually owned the copyright it so aggressively enforced. Elizabeth Townsend-Gard, Tulane School of Law professor specializing in copyright law, discusses the case of “Happy Birthday.”

CIS Affiliate Scholar David Levine interviews Pedro Roffe of the International Centre for Trade and Sustainable Development and Prof. Xavier Seuba of the University of Strasbourg, co-editors of ACTA and the Plurilateral Enforcement Agenda.